Taking Depositions In China. It Can Be Done. Just Kidding.

Not sure how I missed this until now, but Experience Not Logic did an excellent series of posts on taking depositions in China, here, here, here, and here.
The first post sets out the issue:

Here’s the scenario: you’re a litigator preparing a case in the United States. You have reached the onerous task of discovery. A key witness is located in the PRC. You, or your adversary, need to take the Chinese witness’s deposition. The witness is unable to come to the U.S., and their deposition must be taken in China. How do you go about taking this deposition, or preventing the other party from taking the deposition?

Though deposing a Chinese witness in China for a US court case is possible, the post goes on to say that only one such deposition has actually occurred in the last 25 years:

Only one limited deposition of a Chinese citizen in China has been allowed in 25+ years of China signing agreements allowing depositions to be taken. There is a very good reason for this. Depositions require the swearing of an oath. China has very strict laws regarding the administering and swearing of oaths. China likely regards the administering of oaths by foreign attorneys and consular officials as a “violation of China’s judicial sovereignty.” When foreign attorneys or consular officials administer an unauthorized oath in China, the penalties include arrest, detention, expulsion, or deportation of all participants in the oath. Even conducting a deposition in a hotel room with an oath by private persons could result in criminal penalties under Chinese law.
If you are involved in litigation and wish to take a deposition of a Chinese citizen, and you would mind having to sit in a Chinese prison, then you should probably seek permission from the Chinese authorities. If you are on the other side, and want to block the deposition of a Chinese citizen from being taken then you should raise an objection to the deposition as illegal under Chinese law, in a timely manner.

My firm has been involved in a number of cases where it has made sense to depose Chinese witnesses in China and in none of them did it ever occur. Instead, the following happened:
1. In one case, the opposing party wanted to depose five witnesses in Hong Kong. I moved to require opposing party to at least try to secure Chinese government approval for these depositions to go forward in China. I pointed out that my firm had a lawyer in China who could handle the depositions there and that flying him to Hong Kong would greatly increase cost. The court denied our motion and the depositions went forward in Hong Kong.
2. In one case, I was representing the defendant and two China witnesses were absolutely critical to plaintiff’s case. The case ended up settling before trial for nuisance value when it became clear plaintiff”s two witnesses would never leave China to be deposed or to testify at trail.
3. In one case, we brought a key witness to the United States for deposition.
One possible option would be to convince a Chinese witness to be deposed within a US embassy or consulate. My firm has taken depositions overseas in US embassies, consulates, and on US military bases, but never in China. The problem with China is that the cost/risk of seeking to depose someone in China (even at a consulate or embassy) is so high that it is usually just easier to fly the witness to some other country for the deposition.
I would love to hear what others have done to depose Chinese witnesses for foreign court cases.

Dan Harris is internationally regarded as a leading authority on legal matters related to doing business in China and in other emerging economies in Asia. Forbes Magazine, Business Week, Fortune Magazine, BBC News, The Wall Street Journal, The Washington Post, The Economist, CNBC, The New York Times, and many other major media players, have looked to him for his perspective on international law issues.

Heard from a guy at Finnegan’s Taipei office who got involved in a US patent case involving mainland Chinese giving evidence. The people giving the depositions loved it, especially since they got a free trip to Macao out of it. Their biggest difficulty was in finding translators – just how many people are there out there who can translate technical Chinese requiring detailed understanding of the subject with 99.99% accuracy in real time? Especially when the guys giving the depositions know how to play games with the translators by using complex and vague terminology?
Taking depositions in Mainland China seems way too risky, I’m sure that one day it’ll be possible, just not right now. I’d hold up until the PRC govt. actually does something positive to indicate its willingness to allow it and changes the law to make it possible. Even if they start to not apply the old laws, they’ll still be waiting to bite you in the behind when you least expect.

One solution: Many people outside the US want to go to Disneyland at one point in their life. If both sides want to depose the witness but the witness is hesitant to leave China (or other) or it’s ungodly expensive for both attorneys to go there to depose the witness, propose to fly the witness to the US and put the witness up at a hotel and take the depo next to Disneyland and offer to give the witness a two day ticket to Disneyland. Most witnesses will sprint to sign up for that and their hesitancy to leave their beloved mother country fast falls away. Of course, this means both sides to the case equally split said cost, so no charge of witness bias or tampering can be made. This option will also be far cheaper than flying both lawyers to China.
Other option: Some witnesses from Asia may hesitate to fly to the US for their depo. But they don’t think of “Hawaii” as part of the US and it’s a wonderful, idyllic half-way point. Most everybody has heard of Hawaii and wants to go there. So again, both sides split the cost to fly the witness to Hawaii and put them up in a hotel for a night or two. If/when said witness changes their mind and says “yes, I will come”, you can take a vacation day or two and stay in Hawaii to play some good golf.
Not that I have, of course, partaken in a proposal such as the above. 🙂
If the other side does not want you to access the witness, then yes, of course, you have to overcome many of the challenges noted in the post.
Said items/proposals above can also help diffuse a motion from the other side that deposing a witness in China is not needed and/or costs to much to take. For example, if you can convince a judge that you need access to the witness, and the other side is screaming it will be expensive in relation to the value of the case, bringing the witness to Disneyland or Hawaii to cut the cost if both sides split getting the witness there (cause the lawyers are not flying to China and billing their time along the trip) can give the judge some interesting things to think about when ruling on a discovery motion …..

We want to know, too. Even though China signed a treaty with the U.S. on evidence in 1980, and acceded to the Hague Evidence Convention in 1998, China attached strings to both and, well, nothing really happens if you want…

ceh

There’s the issue of getting the Chinese witness a visa and the scheduling difficulties that entails. As far as choice of location, most Chinese I’ve dealt with would much prefer a trip to Vegas than Disneyland or Hawaii…
If a major issue is that foreigners can’t do the oath thing in China, would it be possible to hire a local official of some sort to administer the oath? This is obviously not part of their job description, but query whether it would hold up or be thrown out as way ultra vires…

>>Their biggest difficulty was in finding translators…who can translate technical Chinese…
Actually, in the last few years, we have found a few that rise to the challenge. At least one of the many hurdles assciated with deposing Chinese witnesses can now be overcome!

Matthew

Would such a prohibition also apply to giving video testimony from China. I am looking at this from a non-US civil procedural perspective where depositions are unnecessary but there is a need to examine the witness at trial. In such a case the person taking the oath would no tbe physically present in China. Would similar problems arise?

Peter Huang

Dan, I agree with you that currently the cost/risk of a deposition in China is so high that it is usually easier to simply hold the deposition somewhere else. I personally had a very good experience with a set of depositions held in Hong Kong. Hong Kong seems to have the necessary infrastructure like a major international airport, easy access to court reporting services, a decent selection of English-Mandarin translators, etc. to make the process go smoothly. And all of the clients, lawyers, and Chinese witnesses who were involved with those depositions seemed to find it a reasonably convenient compromise.

Even though China signed a treaty with the U.S. on evidence in 1980, and acceded to the Hague Evidence Convention in 1998, China attached strings to both and, generally speaking, nothing really happens if you want to take a deposition…

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